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Chapter 4
Defenses to Criminal Culpability
Legal challenge by the defendantMay result in reduced charge or acquittalMay consist of denial of factual allegations of prosecutionAffirmative defenseOffers new facts in effort to negate chargesVery important but not always easily understoodNot always agreement on vast array
Defense
Defense has burden of proving any defenses he or she offersStandard of proof is preponderance of evidenceOn whole , evidence supports fact or facts in questionDefense can be partial or completeReduce chargeDefeat chargeIssues complicated due to concept of presumption
The Burden of Proof and Presumptions
PresumptionAssumption of fact based on other factsNot a fact but inference from a factBest known is presumption of innocenceSome cannot be refuted, though this is rareConclusive presumptionPresumption of innocence may be used to illustrate some problems that arise in allocating burden of proofHard 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 defenseNot constitutionally permittedProblems arise when statute tries to ease burden of proof from prosecutor by use of presumptions
The Burden of Proof and Presumptions
Important to recall meaning and purpose of criminal lawMoral or blameworthy element of punishment through criminal law is critical to topic of defensesLines difficult to draw in particular casesJurisdictions differ in statutory definitions and judicial interpretations of defenses
Types of Defenses
Ignorance generally not acceptable reason for violating lawMistake defense permitted under some circumstancesPertains to situations in which actors engage in acts they claim they would not have committed had they known behavior was criminalLack of knowledge may constitute mistake of law or mistake of fact
Types of Defenses: Ignorance or Mistake
Mistake and ignorance of factInvolves perceptions of world and empirical judgements derived from those perceptionsMistake and ignorance of lawInvolve assessment of whether , given certain set of acts, actor would or would not be violating lawMistake defense may be used to negate mental element of a crime
Types of Defenses: Ignorance or Mistake
Mistake defense may be applied in two situationsWhen individuals do not know law existsLambert v. California(1957)When individuals are mistaken about an additional element which causes them to misunderstand legal significance of their conductCan be used as partial defense in some jurisdictions in statutory rape cases
Types of Defenses: Ignorance or Mistake
Condition in which individual is coerced or induced by wrongfulactDefendants must prove they were threatened by unlawful force when they committed crimes for which they are advancing defenseMost courts hold force must be such that it would cause serious bodily injury or deathThreat of harm must be imminentMost statutes require threat is to actor rather than third partyMay not be available when defendants recklessly place themselves in positions in which it is probable they will be subjected to duress
Types of Defenses: Duress
Refers to act that, though criminal in other circumstances, may not be considered criminal because of compelling force of circumstancesIn most cases, coercive forces in successful case are forces of nature rather than humansDistinction not always clearBased on assumption person ought to be free to commit some crimes in order to prevent greater harmSuccessful defenses need not be based on avoiding human injury or deathCan be used when avoiding property damage
Types of Defenses: Necessity
In rare cases, defense permits serious crimesWhen necessary to avoid greater harmDefense not permitted if legal alternative is available that would prevent greater harmNot available for those who created necessity to choose between two evilsUnsuccessful use of defenseDefense rejected by court in 2015Case of Gigi Jordan
Types of Defenses: Necessity
English common law provided children below age of seven could not be convicted of crimeConclusive presumption they were not capable of forming requisite intentPresumption could be refuted in cases involving children between the ages of 7 and 14Rebuttable presumptionPresumptionthat may be refuted byevidenceExisted for children age 14 and overCould be charged as adults provided enough evidence was prevented to overcome presumption
Types of Defenses: Infancy
Most jurisdictions retain some of these distinctionsLess important now due to juvenile courtsMany states permit waivers to adult criminal courts of those accused of serious crimesIn recent years, U.S. Supreme Court as faced infancy issue in several cases involving sentencingSee Focus 4.1
Types of Defenses: Infancy
Involves state of mind or mental condition that negates defendant’s responsibility for his or heractionsControversial defenseUsed in less than one percent of all felony casesMost who assert defense are not successfulTerm insanity is social and legal termSome assume it to be medical term synonymous with mental illness
Types of Defenses: Insanity
When used successfully, results in an acquittalDoes not always result in release of defendantSome confined to mental hospital for treatmentSee Focus 4.2Some most recent cases illustrate lack of successDefense and issue of competency to stand trial were focus of 2015 trial of James E. Holmes
Types of Defenses: Insanity
Traditional and most frequently used testAlso know as right-versus-wrong ruleComes from English caseM’Naghten(1843)Under rule, defendant must show that as result of defect of reason from disease of mind, defendant:Did not know nature and quality of act committedDid not know act was wrong
Types of Defenses: Insanity Tests:M’NaghtenRule
Main problems with rule have centered on definitionsLittle case law on meaning of phrasedisease of the mindMeaning of wordknowis more serious problemSome courts submit case to jury without defining termsOther words and phrases may present interpretation problemsSome critics argue rule emphasizes cognitive part of personality to exclusion of emotional elementsAbility to control behavior not determined solely by cognition
Types of Defenses: Insanity Tests:M’NaghtenRule
Defendant was unable to control their criminal acts even though they knew acts were wrongSome states have adopted this approach either by statute or court decisionDefinition ofirresistible impulsevaries
Types of Defenses: Insanity Tests:Irresistible Impulse Test
Accused not criminally responsible if unlawful act was product of mental disease or mentaldefectComes fromDurham v. United States(1954)Known as product ruleDistinguishesdiseasefromdefectThought rule would assist in eliminating those who are not punishable because they lack moral blameRule not widely adoptedDurhamcase overruled in 1972United States v.Brawner(D.C. Cir. 1972)
Types of Defenses: Insanity Tests:Durham Rule
Developed by American Legal Institute (ALI) scholarsProvides 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 lawTerms “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 thanM’Naghtenrule in substitution ofappreciateforknowAppropriate to introduce expert testimonyTest appears to be a compromiseSecond paragraph written to exclude sociopathic or psychopathic personalitiesParagraph is controversial and rejected by some jurisdictionsAdopted by most jurisdictions that use test
Types of Defenses: Insanity Tests:Substantial Capacity Test
Alternative toinsanitydefensePermitsfindingdefendants mentallyill but not insane attimethey committedcrime(s) chargedMichigan statute provides for finding of GBMI if jury is convinced of all of following:Defendant is guilty of offenseDefendant was mentally ill at time of commission of offenseDefendant not legally insane at time of commission of offenseThose found guilty (or plead guilty) may receive sentence that could be imposed under guilty plea aloneDifference is obligation of Department of Mental Health to provide treatment while defendant is under its jurisdiction
Types of Defenses: Insanity Tests:Guilty but Mentally Ill (GBMI)
Other states have adopted versions of Michigan GBMI statuteArizonaGuilty except insaneFinding under this statute could result in confinement in state or mental health facility or psychiatric facility of correctional systemPortions of statute upheld by U.S. Supreme CourtClark v. Arizona(2006)
Types of Defenses: Insanity Tests:Guilty Except Insane
Dissatisfaction with insanity defense has led some jurisdictions to abolish itIdaho 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 offenseSome states permit evidence of mental illness to be admitted only for purpose of determining appropriate sentence
Types of Defenses:Abolition of Insanity Defense
Those who do not wish to pursue insanity defense may attempt to establish similardefenseDefense 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 crimeSome jurisdictions abolished this defense
Types of Defenses: Diminished Capacity or Partial Responsibility
Defense raised by those who can offer evidence they were unconscious or semiconscious when they engaged in an illegal actCan constitute physical problemIf defendant knew or should have known problem existed, would probably not be applicableCan also constitute emotional traumaSome situations do not applyPreferred by defendants over insanity due to complete acquittal and release of defendant if successfulMay result in civil commitment proceedings
Types of Defenses: Automatism
Only applies to actions by government agents or their employeesMay be used when agents induce defendant to commit crime he or she would not have been inclined to commit without inducementSuccessful defense requires proof of two elements:Government agent induced defendant to commit the crimeDefendant 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 activityBoth acceptable as long as police do not go too farSorrellsv. United States(1932)There are limits to what government may do without committing entrapmentSherman v. United States(1958)See Focus 4.3
Types of Defenses: Entrapment
Similar to defense of entrapmentBased 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 defendantUnited States v. Mosley(10thCir. 1992)Behavior “must be shocking, outrageous, and clearly intolerable”United States v. Harris(10thCir. 1993)United States v. Tucker(6thCir. 1994)
Types of Defenses: Outrageous Government Conduct
Defense of self and others permitted under certain circumstancesGeneral 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 isFacing unlawful threat of imminent death or serious bodily injuryBy an aggressor, andForce used was reasonable under circumstances
Types of Defenses: Self-Defense
Wordreasonableis importantEstablishes objective testIn some jurisdictions, rules may be different for police officersMay be held to subjective standardThreatened harm must be imminent and unlawfulActor must not have provoked attackDoes 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 harmHarm that might cause serious bodily injury or deathModel Penal Code definition and useSome jurisdictions require person to retreat before using deadly forceRetreat doctrineSome have requirements
Types of Defenses: Self-Defense
Castle doctrineExclusion of retreat doctrine from homeSome have retreated from castle doctrine in recent yearsFloridaSome have extended castle doctrine to social guestsOthers are reconsidering stand-your-ground lawsAmerican Bar Association in 2013 appointed National Task Force on Stand Your Ground LawsPresented findings in 2015 and 2016
Types of Defenses: Self-Defense
Rules governing use of force to protect others are similar to those for self-defenseActor 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 personGenerally not required special relationship exist between party using force and one being protected
Types of Defenses: Defense of Others
Permitted by jurisdictionsRules more stringent than those for self-defense or defense of othersDiffer among jurisdictionsWell accepted that deadly force is not allowedReasonable 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 propertyRule prohibits use of booby traps or other devicesCan use reasonable devicesNot designed to create serious bodily injury or deathReasonable care taken to inform potential intruders devices are present
Types of Defenses: Defense of Property
Conduct criminal under most circumstances may be justified and therefore not criminal when committed by law enforcement officer or private citizen attempting to enforce lawIs limit to what they can do to gain evidenceForce may be used by officers in certain circumstancesMost critical issue is use of deadly force
Types of Defenses: Law Enforcement
Under common law, officers permitted to use deadly force against fleeing felonsRule changed inTennessee v. Garner(1985)U.S. Supreme Court acknowledged importance of crime preventionRuled fleeing felon rule unconstitutional
Types of Defenses: Law Enforcement
Condition that exists when person consumes alcohol or other drugs to extent his or her mental or physical abilities are significantlyaffectedLaw recognizes limited intoxication defensePermitted in some instances which there is evidence it created state of mind similar to that of insane personDefendant could not form requisite intent required for crimeCan be used in conjunction with irresistible impulse testDefense not recognized in situations in which intoxication is element of crime
Types of Defenses: Intoxication
Defense divided into two types:InvoluntaryIntoxication without choice or willSee Focus 4.4VoluntaryIntoxication brought on by free willNot a defense in most jurisdictionsIn those that have it, cannot negate general intentMay negate specific intent
Types of Defenses: Intoxication
Stems from ancient lawsBradley v. State(Miss. 1824)Husbands right to administer such discipline not recognized under modern common or statutory lawCurrent law does recognize right of parents to discipline their childrenSome can act in place of parentsIn loco parentis
Types of Defenses: Domestic Authority
Teachers may also discipline their studentsFalls under domestic authority provisionDiscipline must be reasonableSome states specify by statute teachers may not use corporal punishmentNebraska supreme court upheld constitutionality of their statuteDaily 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 paddlingIngraham v. Wright(1977)Domestic authority can exist in other situations as wellPersons in charge of trains, theaters, boats, airplanes, and other similar placesPrison officials over inmatesDiscipline must be reasonable under all situations
Types of Defenses: Domestic Authority
Usually not defenses to a crimeIssue of consent arises frequently in cases of euthanasiaFrequently person killed is a relativeLaw does not permit this cooperation and agreement to negate criminal actIn some cases , consent may negate an element of a crimeConsent may also be defense to less serious actsLawful sports activityConsent must be given voluntarily and knowingly
Types of Defenses: Consent and Condonation
CondonationForgiveness of criminal act by allegedvictimNot generally defense to crime in United StatesDoes not eliminate criminal responsibility of perpetrator for crimes considered offenses against society as well as individual victimsSometimes victims of less serious crimes permitted to negotiate civil settlements with assailants
Types of Defenses: Consent and Condonation
Battered Person SyndromeSyndromearising fromcycleof abuse byspecial person thatleadsbatteredperson to perceiveviolenceagainstabuser is onlyway to endabuseIn some cases,batteredperson murdersbattererIn somejurisdictions, evidence ofbatteredperson syndromeconstitutes defensetocrimeElement of imminent danger may not be presentCan be used as defense or to reduce sentence after conviction
Types of Defenses: Syndrome and Stress Disorder Defenses
Extreme Emotional DisturbanceAnother type of stress defenseOregon statutePosttraumatic Stress Disorder (PTSD)Disorder in which stress is experienced by people who have suffered severe traumaSymptoms 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 veteransWar combat syndromeIn cases involving combat stress, PTSD expert testimony may be admitted to how defendant was in dissociative stateState v.Felde(La. 1982)
Types of Defenses: Syndrome and Stress Disorder Defenses
Rape Trauma SyndromeStress that occurs after forcedsexEvidence ofsyndrome permittedinincreasingnumber ofcourtsNumerous symptoms often presentUse of evidence is not limited to female victimsExcerpts from cases
Types of Defenses: Syndrome and Stress Disorder Defenses
Postpartum Depression (PPD) SyndromeDisorderthat some women experience after givingbirthAmerican Psychiatric Association reports approximately three-fourths of all women suffer “baby blues” after giving birthMost recover in few daysBetween 10 and 20 percent experience depression for longer period
Types of Defenses: Syndrome and Stress Disorder Defenses

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