Chapter 4 Defenses to Criminal Culpability
Chapter Outline
Introduction
The Burden of Proof and Presumptions
Major Court Decisions
The Element of Intent
The Burden of Proof and Self-Defense
The Burden of Proof and the Insanity Defense
Types of Defenses
Ignorance or Mistake
Duress or Necessity
Infancy
Insanity
The M’Naghten Rule
The Irresistible Impulse Test
The Durham Rule
The Substantial Capacity Test
Guilty but Mentally Ill (GBMI)
Constitutional Challenge to the Insanity Defense
Abolition of the Insanity Defense
Diminished Capacity or Partial Responsibility
Automatism
Entrapment
Outrageous Government Conduct
Defense of Persons and Property
Law Enforcement
Intoxication
Domestic Authority
Consent, Condonation, and Victim’s Conduct
Syndrome and Stress Disorder Defenses
The Battered Person Syndrome
Extreme Emotional Disturbance Syndrome
Posttraumatic Stress Disorder (PTSD)
The Combat Stress Syndrome
Rape Trauma Syndrome (RTS)
Postpartum Depression (PPDD) Syndrome
Summary
Study Questions
For Debate
Key Terms
Case Analysis
Internet Activity
Notes
Key Terms
Affirmative defense: The introduction by the defense attorney of new factual allegations that, if true, constitute a complete or partial defense to the crime charged. See also Defense.
Automatism: A defense for a defendant who has proof that he or she was unconscious or semiconscious when the crime was committed. Epilepsy, a concussion, or emotional trauma are examples of conditions that may be used for this defense.
Battered person syndrome: A syndrome arising from a cycle of abuse by a special person (often a parent or a spouse) that leads the battered person to perceive that violence against the offender is the only way to end the abuse. In some cases the battered person murders the batterer, and in some jurisdictions evidence of the battered person syndrome constitutes a defense to that murder.
Clemency: Mercy, kindness, leniency; a term used to describe actions of a governor or president when he or she commutes a sentence—for example, from death to life—or grants a pardon.
Condonation: The forgiving of a criminal act by a victim. Usually condonation is not a defense, but in some cases a victim of a nonserious crime may negotiate a settlement with the defendant, after which the court may drop the criminal charge.
Deadly force: Force that is likely to cause serious bodily injury or death.
Defense: A legal response by the defendant. It may consist only of a denial of the factual allegations of the prosecution. A defense that offers new factual allegations in an effort to negate the charges is an affirmative defense.
Duress: In criminal law, a condition in which an individual is coerced or induced by the wrongful act of another to commit a criminal act; may be used as a defense.
Durham rule: A test of insanity (also known as the product rule) that states that “an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect.”
Entrapment: The defense that a defendant was induced by a government agent to commit a crime that the defendant would not have been inclined to commit without such inducement.
Euthanasia: A term applied to the act of killing someone, often at that person’s request, because of a terminal illness, considerable pain, or a debilitating handicap.
Expert testimony: Opinion evidence given at a trial by a person who possesses technical knowledge or skill that is both relevant to the case and not possessed by the average person.
Fleeing felon: A person trying to avoid arrest after committing a felony.
Guilty but mentally ill (GBMI): An alternative to the insanity defense; permits finding that defendants were mentally ill but not insane at the time they committed the crimes charged. They are guilty, and they may be punished, but generally the jurisdictions that have this concept require that these defendants must receive psychiatric treatment while they are confined, often in a psychiatric facility rather than a prison.
Habeus corpus: Literally, “you have the body.” This Latin term is given to a variety of petitions filed by parties asking the court to order some action, such as to determine the legality of the custody and confinement of the inmate who files the petition.
Insanity: A state of mind that negates a defendant’s responsibility for his or her actions.
Intoxication: The condition that exists when a person consumes alcohol or other drugs to the extent that his or her mental or physical abilities are significantly affected.
Involuntary intoxication: Intoxication without choice or will, such as that which occurs when someone slips drugs into the food or drink of an unsuspecting person. See also Voluntary intoxication.
Irresistible impulse test: A test for insanity stating that an accused cannot be found guilty for a criminal act if he or she is unable to control the actions leading to a crime even though the accused may have known the act was wrong.
Malice aforethought: A required element of murder, providing that the killing be predetermined and intentional and without legal justification or excuse. See also Premeditation (Chapter 6).
Mistake: A defense stating that a defendant would not have committed a criminal act if he or she had possessed accurate knowledge of the law or the facts.
M’Naghten rule: Also known as the right-versus-wrong test of insanity, the M’Naghten rule states that an accused cannot be considered guilty of a criminal act if, as a result of a defect of reason caused by a disease of the mind, the accused did not know the nature and quality of the act or did not know that the act was wrong.
Necessity: Condition in which an act, although criminal in other circumstances, may not be considered criminal because of the compelling force of the circumstances.
Postpartum depression (PPD): A disorder that some women experience after giving birth.
Posttraumatic stress disorder (PTSD): A disorder in which stress is experienced by people who have suffered severe trauma such as war trauma, rape, or abuse. Symptoms include nightmares, feelings of guilt, disorientation, and reliving the traumatic event(s). It is argued that victims of this disorder should not be held accountable for their criminal acts because they cannot control their behavior.
Preponderance of the evidence: Evidence that, on the whole, supports the fact in question. This burden of proof in a civil case is less than the criminal standard of beyond a reasonable doubt.
Presumption: An assumption of a fact based on other facts.
Rape trauma syndrome (RTS): Stress that occurs after forced sex; now considered a posttraumatic stress disorder. Evidence of the syndrome is permitted in an increasing number of courts.
Rebuttable presumption: A presumption that may be refuted by evidence.
Substantial capacity test: Provides that persons cannot be held accountable for a criminal act if they have a mental disease or defect that results in their inability either to appreciate the fact that the act is wrong or to conform their conduct to the law.
Trespasser: One who commits a trespass—the entering or remaining unlawfully in or on the premises (including land, boats, or other vehicles) of another under certain circumstances as specified by statute.
Voluntary intoxication: Intoxication brought on by the free will of the individual. See also Involuntary intoxication.
Writ: An order from a court mandating that specified action be taken or giving someone the authority to take the action requested.
Chapter Overview
· The purpose of a defense is to produce an acquittal or a reduced charge. However, defenses are frequently misunderstood from both technical and policy perspectives.
· Affirmative defenses are those that the defendant raises apart from denial. Affirmative defenses introduce new factual material that, if true, constitutes a defense to the charge.
· Affirmative defenses can be partial (reduce the level of charge) or complete (defeat the charge).
· Also important in understanding defenses is the burden of proving defenses. The prosecution always has the burden of proving every element of a charge beyond a reasonable doubt—the highest burden in the law. The defense, when raising an affirmative defense, must prove it by a preponderance of the evidence.
· Sometimes we can rely upon presumptions, which in the law can be conclusive (cannot be challenged) or rebuttable.
· There is very little agreement on how to classify defenses or categorize them.
· Many defenses are of ancient origin (duress, mistake, infancy, self-defense, and so forth), while others are more recent in origin (insanity). Many have undergone recent scrutiny from a policy perspective (e.g., insanity and infancy).
· Generally, there is a difference between involuntary intoxication and voluntary intoxication, and they have different uses and potential effects as a defense.
· The power to use force on children, spouses, students in public schools, and citizens in order to maintain order and safety in places such as planes, prisons, theaters, and malls is an evolving issue. Historically, more force was permitted than is now the case, most notably in regard to spouses and children. But even schools in many states have banned corporal punishment in any form. However, where permitted, it is a defense to certain offenses.
· The debate about euthanasia invites the discussion of whether someone can consent to being the victim of a crime or condone and forgive the act. How far can we consider the victim’s conduct in examining a crime? Historically it was common in rape cases, but generally no longer. What are the issues of justice in these situations?
· When should the battered person syndrome be permitted as a defense, and what sorts of limitations are there on its use? What are the policy risks of permitting it? Of not permitting it?
· How should the justice system treat problems such as posttraumatic stress disorder or combat stress syndrome? How should these problems be asserted as a defense? What are the policy implications? What about postpartum depression syndrome or premenstrual syndrome?
Learning Objectives
After studying this chapter the student will:
- Be able to explain the difference between the burden of proof and the presumption of innocence.
- Be able to explain the use of affirmative defenses, such as self-defense and insanity.
- Know that insanity is a legal term, not a medical term.
- Know that insanity requires the use of expert testimony.
- Know that with the affirmative defenses it is constitutional to require the defendant to provide proof and why that does not involve shifting the ultimate burden of proof.
- Know the different insanity tests and which is the majority view.
- Be able to explain the M’Naghten test for insanity and explain the problems with definitions within it.
- Be able to explain entrapment and the objective test used to determine if it is present.
- Be able to explain the limits on the defense of property.
- Be able to explain the defense of others.
- Be able to define malice aforethought.
- Be able to define the defenses of mistake, duress, and necessity.
- Be able to define presumption and rebuttable presumption.
- Know the difference between voluntary and involuntary intoxication as it relates to criminal culpability.
- Be able to explain when intoxication may be available as a defense.
- Be able to explain the historical context of domestic authority and its evolution.
- Be able to explain when consent may be used as a defense.
- Be able to discuss the battered person syndrome and the perceived threat from the point of view of the victim of abuse.
- Be able to explain the battered child syndrome and how it differs from battered person syndrome.
- Be able to identify the other major stress disorders.
Review Questions
- Discuss the differences in results in defenses, with reference to partial defense versus impartial defense.
- Explain the burden of proof in criminal cases.
- Explain the presumption of innocence in criminal cases.
- Explain the burden of production and persuasion when the defendant uses an affirmative defense.
- Explain the problem with burden shifting in criminal cases in which the defendant relies upon an affirmative defense.
- What are the tests used to determine insanity in the United States?
- Explain the elements of the M’Naghten insanity tests and the definitional problems associated with the test.
- How did the Model Penal Code change the test for insanity, and why?
- Explain the defense of entrapment.
- What are the limits on defense of property?
- What is a presumption, and how does it affect the burden of proof?
- What does the term malice aforethought mean?
- In the use of affirmative defenses, what burden or standard of proof is required of the defendant?
- What incident caused Congress to change the burden on insanity in federal criminal cases? What is that burden?
- What element may the defense of mistake be used to negate?
- In what two situations may the mistake defense be useful?
- Explain the differences between the defense of necessity and that of duress.
- What was the age of culpability at the common law?
- Under what circumstances may infancy be a successful defense?
- Define presumption and rebuttable presumption.
- What kind of presumption is the presumption of innocence?
- What is the general rule on self-defense?
- What are the elements of self-defense?
- What is the importance of the use of the word “reasonable” in the elements of self-defense?
- When may one use deadly force in self-defense?
- When is intoxication not available as a defense?
- Discuss the issues surrounding the problem of substance abuse, with specific reference to the question of whether it is a disease or a moral problem.
- What do we mean by the term involuntary intoxication?
- Briefly discuss the history of the defense of domestic authority.
- What do we mean by the term euthanasia?
- What defense is battered person syndrome similar to, and how does it differ from the former defense?
- What specific type of evidence is required in the battered person syndrome defense that is not required in the battered child defense?
- What are the major stress disorders?
EXAM QUESTIONS
Multiple Choice Questions
1. According to the American Psychiatric Association, which of the following could cause posttraumatic stress disorder?
a. bereavement
b. natural disasters
c. marital conflicts
d. business losses
2. The difference between the battered person syndrome defense and self-defense is that: