Chapter Six
Defenses to Criminal
Liability: Excuse
Chapter Six Learning Objectives
• 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.
• Appreciate that very few defendants please the insanity
defense, and those who do, rarely succeed.
Learning Objectives
• Understand how insanity is not the equivalent of
mental disease or defect.
• Understand how the right-wrong test focuses on
defect in reason and cognition.
• Understand how the volitional incapacity test focuses
on defect in self-control or will.
• Understand how the product-of-mental-illness test
focuses on criminal acts resulting from mental
disease.
• Know how current trends favor shifting the burden of
proof for insanity to defendants.
Learning Objectives
• Understand the difference between diminished
capacity and diminished responsibility and
appreciate how they apply only to homicide.
• Understand 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.
Learning Objectives
• 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.
Excuses: Defenses and Failure of Proof
Defenses
• Failure of Proof theory
– These defenses excuse criminal conduct because the
prosecution has failed to prove the needed elements
beyond a reasonable doubt
• Example: 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
• Example: Prosecution proves the elements of murder but
then defendant puts on evidence that they acted in duress
Insanity
• 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
Insanity (continued)
• 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
– Example: John Hinckley
• Some states have abolished insanity defense
• Some states have adopted guilty but mentally
ill verdict
Four Tests of Insanity
• 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
• Substantial capacity test (aka MPC Test)-14
states, used to be the rule in the federal courts
until Hinckley
• Product Test (aka Durham rule) – only New
Hampshire
Tests of Insanity (continued)
• All tests look at defendant’s mental capacity
• Right/wrong test focuses on reason/cognition,
or the capacity to determine right from wrong
• Other tests focus on either reason or will
(volition)…the defendant’s power to control
their actions
Right-Wrong Test
• The Right-Wrong Test is also known as the M’Naghten Rule (Established
1843)
– Defendant had a mental disease or defect at the time of the crime
– The disease or defect caused the defendant not to know either
– the nature and quality of his or her actions OR
– That what he or she was doing
• Definitions:
– Mental disease does not include personality disorders (Psychopathic and
sociopathic Personality Disorders)
– Mental defect refers to mental retardation or brain damage severe enough to
interfere with action or reason
– “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 at he time of the
act
• Example think squeezing lemons when it’s victim’s head.
– Wrong
• Legal wrong? Morally wrong? States vary
– People v. Schmidt (1915)…”Contrary to the laws of god and man”
Irresistible Impulse Test
• 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
• Generally a supplement to the right/wrong test
• Focuses upon a defendants’s inability to control
impulses…Typically “Sudden Impulses”
– 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 (1877) – Spells out Application
Irresistible Impulse Test
(continued)
• Elements from Parsons
– Mental disease caused the defendant to so far 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, crippling deterrence and retribution
Substantial Capacity Test
• 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
Substantial Capacity Test
(continued)
• A person is not responsible for criminal conduct if
at the time of such conduct
1. As a result of mental disease or defect
2. He lacks substantial capacity
3. Either to appreciate the criminality
(wrongfulness) of his conduct
• Intellectual awareness alone isn’t enough to
create culpability
4. Or to conform his conduct to the requirements of
law
• The Substantial Capacity Test Removes the
sudden lack of control requirement
People v. Drew (1978)
• Drew became engaged in an argument at a
bar, and subsequently assaulted police who
responded to the scene.
• At trail, Drew pleaded Insanity (M’Naughten
Rule) where the jury was instructed the
burden of proof was on the defendant, and he
was found guilty, despite unrebutted
testimony by 2 expert Witnesses.
• The Appeals court reversed the judgment
Summary of case holding
• Court evaluated M’Naghten rule and set forth many
reasons why it should be replaced—particularly in light
of modern research
• Court said the test should be the Model Penal Code
test and pointed out its advantages
• Court found that defendant could have been found not
guilty under MPC test if it had been instructed as to
that test (rather than M’Naghten)
• Dissent pointed out that those types of changes in law
(abandoning one test and adopting another) should be
left to the legislature NOT to the courts
Product of Mental Illness Test
• From Durham v. United States (1954)
– Case criticized right-wrong test because it considers knowledge
and reason alone
• Only ever used in D.C, New Hampshire and Maine…Now
only used in N.H.
– Abandoned in D.C. after Hinckley
• Focuses on acts that are the products or result of mental
disease or defect to excuse criminal liability
• Extended beyond the purely intellectual knowledge into
cognition and will
Burden of Proof in Insanity Cases
• 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
• 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 or Preponderance of evidence.
Diminished Capacity
• 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
Diminished Capacity
• Distinguish between diminished responsibility
– Diminished responsibility
• What I did was wrong, but under the circumstances I am less
responsible.
• State v. Phipps (1994)
– The defendant seeks to be punished for la 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
• Most states reject both diminished capacity and
diminished responsibility defenses…or allow the court
to consider it for sentencing purposes
Age
• The excuse of age focuses on whether a
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)
Age (continued)
• 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
Age (continued)
• Modern Rules regarding age and capacity :
– 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 younger or very reduced years
Age and the Jurisdiction issue
• 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
– 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)
– Judicial waiver—juvenile court judge exercises jurisdiction to
transfer a juvenile to the adult court
State v. K.R.L. (1992)
• An 8 year old boy was convicted of residential
burglary
• The conviction was appealed, on the basis of
age and capacity.
• The court reversed the conviction.
Summary of case holding
• Washington’s law held that children under 8 were
incapable of committing crimes; children
between 8 and 12 were presumed incapable, but
that the presumption could be removed by proof
that they had sufficient capacity.
• State had to overcome presumption that KRL was
incapable. (It bore the “significant burden.”)
• District court found K.R.L capable of committing
crime but appellate court found insufficient
evidence by state to overcome the presumption.
Age (continued)
• Other age-related issues
– Can person be too old to commit a crime?
• Example: Old man kills his wife when she
brings back onion rolls instead of
bagels…prosecutor declines charges
– Behaviors only criminal for youth
• People v. Munoz (1961)—possess switchblade
when under 21
Duress
• 4 Elements of the Defense of Duress
Vary from state to state, but generally include
– Threats
• Sometimes specified, sometimes not
• Threats of serious bodily harm
• Don’t have to be directed at the person who acted
– Immediacy…the threat must be imminent
• Instant harm, immediate harm, belief that person making threats
will carry the threats out immediately if the crime was not
committed
– Sometimes states limit duress to certain crimes or say
duress is not applicable to some crimes
• Example, in most states duress cannot be raised as a defense to a
murder charge.
– Most states require a reasonable belief that the threat is
real
Distinguish between Duress and Necessity
• Duress is an excuse, necessity is a justification
• Duress always involves threat of injury made
to person accused of committing crime
• Necessity presents choices but doesn’t
necessarily involve a threat by another to
“commit the crime or else.”
• These are not mutually exclusive
Intoxication
• Common Law approach
– Voluntary intoxication was not a defense/excuse
to criminal behavior
– (Those who get drunk should take the
consequences of their actions)
– Aggravation rather than an excuse for criminal
misbehavior
• Modern Trend
– To limit voluntary intoxication as a defense or
mitigating factor in sentencing
Intoxication (continued)
• 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
Intoxication (continued)
• 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)
– But see Arizona’s statute specifically saying that
temporary voluntary intoxication is not a defense for
any criminal act or requisite state of mind
• Alcohol and other intoxicants are treated similarly
Entrapment
• 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
1. Subjective Test
2. Objective Test
Entrapment (continued)
• 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
– The Question: Where did the criminal intent
originate?
• Merely providing an enticement is not entrapment
Entrapment (continued)
• Subjective test of entrapment
–Factors considered by the court
• Defendant’s prior convictions for similar
offenses
• Defendant’s willingness to commit
similar offenses
• Defendant’s display of criminal expertise
in carrying out the offense
• Defendant’s readiness to commit the
crime
Sherman v. U.S. (1958)
• After weeks of persistent begging and
pleading by a federal informant, Sherman
procured heroin for the government agent
and was arrested and Convicted.
• Sherman appealed on the basis of entrapment
• The US Supreme Court agreed.
Oliver v. U.S. (1985)
• Oliver was arrested for larceny from the
person after he pulled a $10 bill openly
protruding from the pocket of a police decoy
who he first attempted to assist.
• Oliver was convicted and appealed on the
basis of entrapment.
• The court agreed.
DePasquale v. U.S. (1988)
• As part of a pick pocketing team working
together, selected a decoy officer, posing as
tourist, and after repeated efforts, reached
into her pocketbook, opened a zippered
pocket, and removed cash bait.
• DePasquale was convicted by a jury, and
appealed on the basis of entrapment.
• The court disagreed and upheld the
conviction.
Summary of entrapment
case holdings
• Subjective test of entrapment
– Cases:
• Sherman v. U.S.-defendant committed to drug treatment and
intent originated with the government, defendant only acquiesced
after weeks of begging and pleading by K.
• Oliver v. State—police tempted man who apparently did not
approach the decoy to harm him, but rather to help him.
• DePasquale v. State—decoy simply provided the opportunity to
commit the crime by DePasquale who was predisposed to commit
the crime.
– Factors considered by the court
• Defendant’s prior convictions for similar offenses
• Defendant’s willingness to commit similar offenses
• Defendant’s display of criminal expertise in carrying out the
offense
• Defendant’s readiness to commit the crime
Entrapment (continued)
• Objective test of entrapment
– Minority approach
– Focuses on the actions that the government (the
police) 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
Syndrome Defenses
• 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
– Battered Woman Syndrome
– Post Traumatic Stress Disorder
Syndrome Defenses
• PMS
– 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 do
medical records document this condition
• PMS has to cause the mental impairment that excuses
the conduct and there is too much skepticism
Syndrome Defenses
• Post-Traumatic Stress Syndrome
– Defense arose after Vietnam war
– Emotional and mental casualties that were more
serious and lasting than physical impairments
from war injuries.
– Treated by states that allow it as either a failure of
proof defense or an affirmative defense
State v. Phipps (1994)
• David Phillips, a veteran of Desert Shield who
was suffering from PTSD was convicted of the
first degree murder of his wife’s lover.
• Phillips appealed on the basis of the Jury
Instruction (The instruction being that PTSD
is not a defense) virtually nullifying the expert
testimony which he sought to relate to his
mental state on the element of intent
(premeditation and purpose)
• The court agreed.
Summary of case holding
• Defendant argued that his PTSD kept him from formulating
the specific intent to commit first degree murder, and that
the court erred in instructing the jury that PTSD was not a
defense.
• He argued that the jurors should have been allowed to
consider whether he had the requisite mens rea. (He put
on evidence regarding his lack of specific intent)
• The appellate court held the trial court’s comments about
the non-existence of PTSD were erroneous and didn’t
reflect state law. The jury should have been able to
consider the testimony for the purpose of determining
whether the state failed to prove specific intent.