1. 1 Book Cover Here Copyright © 2010, Elsevier Inc. All rights Reserved Chapter 3 Capacity and Defenses Criminal Law Ninth Edition

2. 2 Copyright © 2010, Elsevier Inc. All rights Reserved Introduction One purpose of criminal law is to establish and define standards of human conduct. A general legal principle is that all persons have the power to choose between right and wrong and to do or refrain from doing that which the law commands. There are generally “classes” of people who cannot, by definition, form the necessary criminal intent. There are others who may experience circumstances such that they should not be held responsible for their actions. 3.1

3. 3 Infancy or Immaturity A crime is not committed if the mind of the person doing the act is incapable of forming a culpable mens rea. Infancy means only that the child does not have the capacity to determine right and wrong. The age of infancy is set by case law or statute. Copyright © 2010, Elsevier Inc. All rights Reserved 3.2

4. 4 Infancy or Immaturity Common Law A child under the age of seven was conclusively presumed to be incapable of having the necessary criminal intent and could not commit a crime. Even if the child confessed to the act there could be no conviction for that crime. A child between 7 and 14 was presumed not to have the capacity to commit the crime; however, the presumption was rebuttable. Copyright © 2010, Elsevier Inc. All rights Reserved 3.2

5. 5 Infancy or Immaturity Model Penal Code The age at which the juvenile court shall have exclusive jurisdiction and briefly states the procedure to be followed in transferring a case from the juvenile court to the criminal court. No one less than 16 at the time of the alleged offense may be tried for or convicted of the offense in criminal court. If the juvenile was between 16–18 at the time of the offense, the juvenile court, after a hearing, may enter an order waiving jurisdiction and the case will be transferred to adult criminal court. Copyright © 2010, Elsevier Inc. All rights Reserved 3.2

6. 6 Infancy or Immaturity State Statutes, Codes, and Cases Infancy is a defense in most states. There is no constitutional right to be treated as a juvenile. In the majority of states, criminal acts committed by juveniles are generally adjudicated in juvenile court. When certain more serious crimes are committed the juvenile court may waive jurisdiction. More juveniles, especially those 16 or older, are being processed in adult criminal courts. Copyright © 2010, Elsevier Inc. All rights Reserved 3.2

7. 7 Infancy or Immaturity Summary Under the common law and under state statutes in all 50 states, infancy may be a defense to criminal culpability. In common law and in most states today, there is an age under which a child is believed to be incapable of forming criminal intent, which is usually around age 7 or 8. There is also an age range where the presumption of incompetence is rebuttable. Juvenile court may adjudicate proceedings against children who are found competent; or the case may be transferred to adult court. Copyright © 2010, Elsevier Inc. All rights Reserved 3.2

8. 8 Mental Impairment or Insanity Insanity is a legal term, not a medical term and refers to any mental illness that meets the legal threshold for incapacity. Competency, insanity, and diminished capacity/responsibility are various ways mental incapacity may become an issue in a criminal proceeding. Copyright © 2010, Elsevier Inc. All rights Reserved 3.3

9. 9 Mental Impairment or Insanity Competency Mental incapacity may be used as incompetency to stand trial; specifically, that the defendant’s mental state is such that he is unable to understand the proceedings against him or help in his own defense. Copyright © 2010, Elsevier Inc. All rights Reserved 3.3

10. 10 Mental Impairment or Insanity Insanity A type of mental incapacity; specifically, that the defendant’s mental state was such at the time of the crime, that he should not be held responsible for his crime. Insanity and incompetency to stand trial are different findings and the standards for determining each are different. Copyright © 2010, Elsevier Inc. All rights Reserved 3.3

11. 11 Mental Impairment or Insanity Diminished Capacity/Responsibility The defendant’s mental state at the time of the crime (or at the time of sentencing) may be taken into consideration even though the legal standard of insanity was not reached. Copyright © 2010, Elsevier Inc. All rights Reserved 3.3

12. 12 Mental Impairment or Insanity Common Law Courts held that if the defendant had no understanding or memory to know what he was doing was wrong, he was like an infant or wild beast and, therefore, not culpable. M’Naghten case Charged with murder Suffered delusions that he was being persecuted by the Prime Minister of Great Britain In a seriously disordered medical condition at the time of the incident Created the M’Naghten’s Rules Copyright © 2010, Elsevier Inc. All rights Reserved 3.3

13. 13 Mental Impairment or Insanity M’Naghten Rules (“Right and wrong test”) The test has been and still is followed in many jurisdictions. The test asks Was the defendant, at the time of committing the act, 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, he did not know what he was doing was wrong? Copyright © 2010, Elsevier Inc. All rights Reserved 3.3

14. 14 Mental Impairment or Insanity Model Penal Code A defendant is entitled to acquittal by reason of insanity if the evidence shows that, because of a mental disease or defect, he: Lacked substantial capacity to appreciate the criminality of his conduct; or Lacked substantial capacity to conform his conduct to the requirements of the law. Most states have not adopted the formula. Copyright © 2010, Elsevier Inc. All rights Reserved 3.3

15. 15 Mental Impairment or Insanity State Statutes, Codes, and Cases Insanity is an affirmative defense. In pleading, matter constituting a defense; new matter that, assuming the complaint to be true, constitutes a defense to it; defendant has burden to put forward evidence reaching preponderance. The level of proof is usually a preponderance, but some jurisdictions have raised the defendant’s burden of proof to clear and convincing. If the defendant meets the burden of proof, the state must introduce evidence to prove sanity beyond a reasonable doubt. Copyright © 2010, Elsevier Inc. All rights Reserved 3.3

16. 16 Mental Impairment or Insanity Test of Insanity M’Naghten Rule (Right/Wrong Test) Irresistible Impulse Rule Durham Rule A.L.I. Test (Model Penal Code) Copyright © 2010, Elsevier Inc. All rights Reserved 3.3

17. 17 Mental Impairment or Insanity M’Naghten’s Rule A defendant must introduce at least some evidence to show that, as a result of his mental condition, he Did not know the nature and quality of his act; or Did not know that the act was wrong. The rule is criticized because psychiatrists and psychologist arguable have more to say about the defendant’s mental state that can be succinctly explained by simple “yes” or “no” answers to the questions of the rule. Copyright © 2010, Elsevier Inc. All rights Reserved 3.3

18. 18 Mental Impairment or Insanity Irresistible Impulse Rule Added to the right-wrong test in some states. The jury must be satisfied that at the time of committing the act, the accused, as a result of disease of the mind: Did not know the nature and quality of the act, or Did not know that it was wrong, or Was incapable of preventing himself from doing it. The test is criticized because it is hard to determine whether or not the impulse was irresistible. Copyright © 2010, Elsevier Inc. All rights Reserved 3.3

19. 19 Mental Impairment or Insanity Durham Rule The jury must determine: Whether the defendant had a mental disease or defect at the time of the alleged crime and, if so, Whether the harmful act was the product of his insanity. This rule has been criticized because it provides no criteria to guide the jury. Critics also believe that the test is too broad. Copyright © 2010, Elsevier Inc. All rights Reserved 3.3

20. 20 Mental Impairment or Insanity A.L.I. Test The test determines whether the defendant lacked “substantial capacity” to conform his behavior to the law. It allows the expert witness to discuss how the act was a product of the mental illness, and also allows for the defense of irresistible impulse. It has not been adopted in the majority of jurisdictions. Copyright © 2010, Elsevier Inc. All rights Reserved 3.3

21. 21 Mental Impairment or Insanity In Ake v. Oklahoma, the Supreme Court held that it was “highly doubtful” that due process required a state to have the insanity defense available to criminal defendants. In the case of State v. Searcy, the Idaho Supreme Court upheld the constitutionality of the state statute that had abolished insanity as an affirmative defense. Copyright © 2010, Elsevier Inc. All rights Reserved 3.3

22. 22 Mental Impairment or Insanity Only Idaho, Kansas, Montana, and Utah have completely discarded the traditional insanity defense. Evidence of mental illness may still be used to rebut the state’s evidence of mens rea because mental illness may preclude a finding that the defendant was capable of the requisite premeditation or intent. Copyright © 2010, Elsevier Inc. All rights Reserved 3.3

23. 23 Mental Impairment or Insanity Incompetency to Stand Trial Dusky v. United States Whether he (accused) has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him. Dunn v. Commonwealth The test is whether he has substantial capacity to comprehend the nature and consequences of the proceeding pending against him and to participate rationally in his defense. It is not necessary that this determination be made by a jury. Copyright © 2010, Elsevier Inc. All rights Reserved 3.3

24. 24 Mental Impairment or Insanity Incompetency Most state requirements are the same. If an individual cannot help in his or her own defense, they cannot be forced to stand trial. The typical result is that they are held in a mental facility until such time that they are proven competent. Copyright © 2010, Elsevier Inc. All rights Reserved 3.3

25. 25 Mental Impairment or Insanity Diminished Capacity Is not a clear concept and states have different approaches as to how it can be brought in, as well as what types of evidence can be used for proof. Types of diminished capacity Premenstrual Syndrome and Post-Partum Depression Syndrome Intoxication Post-Traumatic Stress Syndrome Battered Spouse/Woman Syndrome Copyright © 2010, Elsevier Inc. All rights Reserved 3.3

26. 26 Mental Impairment or Insanity Summary It is obvious that the questions relating to mental impairment as a defense to crime have not been resolved. At present, it is safe to say that the majority of the states still follow the M’Naghten Rule with possibly some modifications. The three situations in which mental impairment is considered during adjudication are: A plea of incompetency at time of trial; An affirmative defense of insanity; and At sentencing. Copyright © 2010, Elsevier Inc. All rights Reserved 3.3

27. 27 Mental Impairment of Insanity Summary Diminished capacity defenses are used when the defendant is not legally insane, but his or her mental condition does call into question whether the required mens rea for the crime could be formed. Copyright © 2010, Elsevier Inc. All rights Reserved 3.3

28. 28 Duress or Compulsion What would ordinarily be a criminal act may be excused at law if the act is committed under duress or compulsion (except homicide). Conditions The coercion must be of such a nature as to induce a well- grounded apprehension of death or serious bodily harm and there must be no reasonable escape without committing the crime. A threat of future injury is not enough to justify committing a crime. If there is a possibility of seeking help it must be pursued. Copyright © 2010, Elsevier Inc. All rights Reserved 3.4

29. 29 Duress or Compulsion Common Law Did not recognize any compulsion, even the threat of instant death, as sufficient to excuse the intentional killing of an innocent person. Harris v. State Copyright © 2010, Elsevier Inc. All rights Reserved 3.4

30. 30 Duress or Compulsion Model Penal Code The defense of duress is not established simply by the fact that the defendant was coerced; he must have been coerced in circumstances under which a reasonable firmness in his situation would likewise have been unable to resist. The actor is deprived of the duress defense if he recklessly places himself in a situation in which it was probably that he would be subject to duress. Copyright © 2010, Elsevier Inc. All rights Reserved 3.4

31. 31 Duress or Compulsion State Statutes, Codes, and Cases In order for duress or compulsion to be recognized as a defense to criminal charges, the compulsion must come from an outside source and be of such a degree as to overcome the will of the actor. Some state statutes deny the defense of duress to an individual who intentionally or wantonly places himself in a situation in which coercion is likely to be applied. Duress excuses criminal behavior where the defendant shows that the acts were the product of threats inducing a reasonable fear of immediate death or serious bodily injury. The defense of duress requires that the perceived threat or use of unlawful force be against the actor. Copyright © 2010, Elsevier Inc. All rights Reserved 3.4

32. 32 Duress or Compulsion State Statutes, Codes, and Cases The threat must be imminent. Two components of imminent threat The person making the threat must intend and be prepared to carry out the threat immediately Carrying out the threat must be predicated on the threatened person’s failure to commit the charged offense immediately. Copyright © 2010, Elsevier Inc. All rights Reserved 3.4

33. 33 Duress or Compulsion Battered Spouse/Woman Syndrome In some cases of domestic violence, the victim does not use violence against the abuser during a violent episode, but rather during a time when the batterer is either asleep or otherwise incapacitated. The battered woman defense, created by Lenore Walker, argues that the victim in a consistent, serious pattern of abuse become “helpless” to escape. The defense is generally not available to women who hire a third party to commit the act. Copyright © 2010, Elsevier Inc. All rights Reserved 3.4

34. 34 Duress or Compulsion Summary The defense of duress has been an accepted defense since the common law, but it is very limited in its application. The defendant must be in imminent fear of bodily harm by another with no escape, the crime cannot be homicide, and the defendant must not have been reckless in putting themselves in harm’s way. The battered woman’s defense is a special type of duress defense but is not universally recognized. Copyright © 2010, Elsevier Inc. All rights Reserved 3.4

35. 35 Necessity (Choice of Evils) A defense that allows an offender to claim that he or she avoided a greater evil by committing a crime. The traditional view is that the pressure or the factors that made the violation necessary must come from the physical forces of nature rather than from human beings. Will not allow one to sacrifice an innocent to save oneself or one’s property. Copyright © 2010, Elsevier Inc. All rights Reserved 3.5

36. 36 Necessity (Choice of Evils) Regina v. Dudley and Stephens Dudley and Stephens were tried for murder of another sailor. All 3 had been adrift for 20 days and were starving. They killed and ate the victim because he was the youngest and the weakest. Convicted because necessity was not recognized as a defense to murder. Copyright © 2010, Elsevier Inc. All rights Reserved 3.5

37. 37 Necessity (Choice of Evils) Common Law One may be justified by necessity in violating the law and causing harm in order to avoid a greater harm caused by complying with the law. Only recognized when the defendant acted with the intention of avoiding the greater harm. Model Penal Code The evil sought to be avoided must be greater than that sought to be prevented by the law defining the offense. Copyright © 2010, Elsevier Inc. All rights Reserved 3.5

38. 38 Necessity (Choice of Evils) State Statutes, Codes, and Cases Statutes have been enacted in about half of the states to more specifically define the necessity defense. Examples Marijuana as a Medical Necessity Escape from Prison to Avoid Injury Civil Disobedience to Prevent Government Wrongs Copyright © 2010, Elsevier Inc. All rights Reserved 3.5

39. 39 Necessity (Choice of Evils) In distinguishing between the defenses of compulsion or duress and necessity, an Illinois court advised that compulsion is a defense distinct from necessity; compulsion implies a complete deprivation of free will and absence of choice, while necessity involves choice between two or more admitted evils. Both tend to be limited to property offenses and cannot be used to justify harming an innocent victim. Copyright © 2010, Elsevier Inc. All rights Reserved 3.5

40. 40 Self-Defense Self-defense Is a defense that the action charged as a crime was for the protection of one’s person and property from injury. The general rule is that a person is privileged to use force as reasonably appears necessary to defend himself or herself against an apparent threat of unlawful and immediate violence from another. Copyright © 2010, Elsevier Inc. All rights Reserved 3.6

41. 41 Self-Defense Common Law The defendant believed physical force to be necessary for self-protection, or protection of another; His or her belief was based upon reasonable grounds; The threat of danger was imminent; and The force used was not in excess of that believed necessary to repel the unlawful attack. Copyright © 2010, Elsevier Inc. All rights Reserved 3.6

42. 42 Self-Defense Model Penal Code The use of force is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion. The use of deadly force is not justified if the actor can avoid the necessity of such force by taking certain steps such as retreating, surrendering possession of the thing to a person asserting the claim of a right thereto, or complying with the demand that he abstain from action that he has a duty to take. Copyright © 2010, Elsevier Inc. All rights Reserved 3.6

43. 43 Self-Defense State Statutes, Codes, and Cases Fear of physical harm to self or another Reasonableness of fear Imminence of danger People v. Goetz Proportionality of force used Copyright © 2010, Elsevier Inc. All rights Reserved

44. 44 Self-Defense State Statutes, Codes, and Cases “Clean hands” Duty to retreat “Make-my-day” laws and defense of property Right to resist unlawful force by police Copyright © 2010, Elsevier Inc. All rights Reserved 3.6

45. 45 Self-Defense Summary Self-defense has been recognized since common law. Generally, people have the legal right to defend themselves or others against an imminent danger. The general elements of self-defense are that the fear must be: Of bodily harm, Reasonable, and The danger must be imminent. The defendant cannot have instigated the danger. In some states, there is a duty to retreat before resorting to force. Copyright © 2010, Elsevier Inc. All rights Reserved 3.6

46. 46 Entrapment Is a defense that law enforcement officers enticed persons to commit a crime who had no pre-existing disposition to do so. Sorrells v. United States (1932) Sherman v. United States (1958) The cases were combined to create an entrapment “test.” United States v. Russell “Subjective test” If the offender was predisposed to commit the crime, then it did not matter what the government did. Copyright © 2010, Elsevier Inc. All rights Reserved 3.7

47. 47 Entrapment Model Penal Code Ways in which a public law enforcement official can perpetrate an entrapment Making representations known to be false for the purpose of inducing a belief that the conduct is not prohibited by law. Employing methods of persuasion that creates a substantial risk that such offense would be committed by persons other than those who are ready to commit it. Copyright © 2010, Elsevier Inc. All rights Reserved 3.7

48. 48 Entrapment State Statutes, Codes, and Cases Many states rely on the defense as defined by state and federal appellate courts. Colorado and other state statutes make it clear that merely affording the person an opportunity to commit an offense is not entrapment. State v. Eib To show entrapment the defendant must show both unlawful mental inducement to engage in unlawful conduct and his lack of predisposition. Previous unlawful involvement with controlled substance can be given consideration. Copyright © 2010, Elsevier Inc. All rights Reserved 3.7

49. 49 Entrapment Summary Entrapment is an affirmative defense. Once the defendant has made out a prima facie case to raise the issue of entrapment, the government bears the burden of proving beyond a reasonable doubt that the defendant was not entrapped. In most states, once the defendant offers some proof of entrapment, the government must establish that the defendant had a predisposition, independent of government action, to commit the crime. Copyright © 2010, Elsevier Inc. All rights Reserved 3.7

50. 50 Ignorance or Mistake Two types of mistakes Mistake about the legality of an action Mistake about an essential fact Copyright © 2010, Elsevier Inc. All rights Reserved 3.8

51. 51 Ignorance or Mistake Common Law If there is an honest and reasonable mistake of fact, such ignorance or mistake of fact may exempt a person from criminal liability. Model Penal Code If the defendant’s honest mistake negates the required mens rea, then it is a defense. Copyright © 2010, Elsevier Inc. All rights Reserved 3.8

52. 52 Ignorance or Mistake State Statutes, Codes, and Cases Mistake of Law State statutes generally follow common law in that ignorance of the law is no excuse. When the law in question is so obscure that a reasonable person would not be expected to know of it then there is an exception created. Mistake of Fact Examples Defendant erroneously believed that the horse he took from the field was his Defendant erroneously believed that the house he was burning down belonged to his mother-in-law Copyright © 2010, Elsevier Inc. All rights Reserved 3.8

53. 53 Ignorance or Mistake Summary In general, mistakes of law are generally not a defense unless the crime requires specific intent. Mistakes of fact may be a defense if they negate an element of the crime. Copyright © 2010, Elsevier Inc. All rights Reserved 3.8

54. 54 Alibi Is a defense that the offender was in a different place at the time the offense was committed. Copyright © 2010, Elsevier Inc. All rights Reserved 3.9

55. 55 Alibi Summary The only real issue in the defense of alibi is whether it is a true affirmative defense or simply an argument as to the lack of one of the elements of the crime. All states recognize the defense of alibi but the defendant must, in order to present a prima facie case of alibi, cover the time of the crime exactly. The jury or judge is free to weigh the credibility of the alibi evidence against other evidence, as is true in all aspects of trial evidence. This is the only defense where the defendant’s position is one of actual innocence. Copyright © 2010, Elsevier Inc. All rights Reserved 3.9

56. 56 Time Limitations Statute of limitations Means that the time limitation for prosecution has expired. Time begins as soon as the offense is completed. The running of the time may be stopped by the filing of an indictment or information or at the time a complaint is laid before a magistrate and a warrant of arrest is issued. Copyright © 2010, Elsevier Inc. All rights Reserved 3.10

57. 57 Time Limitations Model Penal Code Includes a time limitation for all offenses Six years for felonies of the first degree Three years for less serious felonies Two years for misdemeanors Six months for petty misdemeanors and violations Murder does not have a time limitation State Statutes, Codes, and Cases Most jurisdictions have enacted statutes to limit the time for the commencement of some criminal proceedings. Copyright © 2010, Elsevier Inc. All rights Reserved 3.10

58. 58 Other Defenses Acting under the authority and direction of others Immunity Constitutional challenges Outrageous government conduct Vindictive prosecution Copyright © 2010, Elsevier Inc. All rights Reserved 3.11