Defenses to Criminal
Liability: Excuse
Joel Samaha
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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.
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Understand how the rightwrong test focuses on defect
in reason and cognition.
Understand how the
irresistible impulse test
focuses on defect in selfcontrol or will.
Understand how the productof-mental-illness test focuses
on criminal acts resulting from
mental disease.
Understand how the
substantial capacity test
focuses on reason and selfcontrol
Know how current trends favor
shifting the burden of proof
for insanity to defendants.
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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.
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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.
 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
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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
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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
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Some states have abolished
insanity defense
Some states have adopted
guilty but mentally ill verdict
 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
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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
Right/wrong test focuses on
reason/cognition:
Reason: capacity to tell right
from wrong
Will: power to control actions
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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
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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
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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
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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?
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=7
415896n
 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.
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Can’t blame person or deter
others who because of a mental
disease or defect lose their selfcontrol and cannot bring their
actions into conformance with
what the law requires
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• Bifurcated (two –state) trail: has
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state met burden of proof and has
defendant established mental
illness defense
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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
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From Durham v. United States (1954)
• Case criticized right-wrong test because it considers
knowledge and reason alone
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Only ever used in D.C, New Hampshire and Maine.
Now only used in N.H.
• Abandoned in D.C. after Hinckley
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Acts that are the products of mental disease or defect
excuse criminal liability
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Extended beyond the purely intellectual knowledge
into cognition and will
 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
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
 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
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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
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Most states reject both diminished capacity and
diminished responsibility defenses…or allow the
court to consider it for sentencing purposes
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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
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
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• 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
 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.
Elements of Duress vary from state to state, but generally
include
 Threats
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• Sometimes specified, sometimes not
• Threats of serious bodily harm
• Don’t have to be directed at the person who acted
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Immediacy
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Sometimes states limit duress to certain crimes or
say duress is not applicable to some crimes
 Instant harm, immediate harm, belief that person making threats
will carry the threats out immediately if the crime was not
committed
 Example, in most states duress cannot be raised to a murder
charge.
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Most states require a reasonable belief that the threat
is real
 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
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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
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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?
 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
 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
 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
 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.
 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
 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
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
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• Battered Woman Syndrome
• Post Traumatic Stress Disorder (PTSD)
• 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
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?
 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